Three Antelope Case A Win For Conservation

Written By John J. Jackson III, Conservation Force Chairman & President

(posted August 2009)

There is a lot of confusion and misinformation about the recent US court decision on hunting ranch-bred addax, dama gazelle and scimitar-horned oryx. Few understand that the case was more a win than a loss for hunting conservation.

When the addax, Dama gazelle and scimitar-horned oryx were listed as endangered in 2005 under the Endangered Species Act, a special regulation was adopted allowing their continued breeding and culling as an exotic within the US. Unlike in the past with species like barasingha, eld’s deer and Arabian oryx, the Service’s special rule provided they could be bred and culled (killed/hunted) without specific permits, and the Service made a general finding that existing exotic wildlife ranching within the US enhanced the survival of these species.

Animal rights organizations filed suits in both California and Washington, DC. It is interesting to note that the Center for Biological Diversity, typically involved in environmental issues, was the lead plaintiff in the first suit in California, although the environment and global warming has no bearing on these species. Other plaintiffs have included HSUS, Friends of Animals, Born Free USA, Bill Clark, Defenders of Wildlife, Kimya Institute, et al.

The case was consolidated in the District of Columbia federal district court and was finally resolved by cross motions for summary judgment on June 22, 2009 after nearly five years of litigation.

The case is more of a win than a loss for the hunting community. The antis raised every possible issue and lost on all but one. They challenged the very idea of enhancement through harvesting or that the killing of an endangered listed species can ever be treated as “conservation” as defined by the ESA. The antis also made the all-too-common claim that legal trade would lead to increased poaching, which the judge wholly rejected. Instead, the court accepted the USF&WS position that this “alternative” hunting within the US would actually relieve the pressure on the species in native lands. “Causation” of increased poaching was not proven. The USF&WS called such an argument “an ingenious academic exercise in the conceivable,” citing Lujon, 50465 at 566, i.e. unsupported speculation.

The USF&WS also defined enhancement. It is worth citing here because of the insight it provides, the recognition it gives to what the ranchers in Texas have achieved and because it is what the court relied upon in denying most of the challenges made by the antis.

“Congress’ intent to permit otherwise prohibited activities under the unique circumstances presented in this case is clear…Under Section 10(a)(1)(A) on its face clearly provides the Service authority to permit ‘any act otherwise prohibited…to enhance the propagation or survival of the affected species’…The ESA dose not define what actions enhance the propagation or survival of the affected species…

“Here, the dictionary defines ‘enhance’ as to ‘add or contribute to,’ ‘propagation’ as ‘increase (as a kind of organism) in numbers,’ and ‘survival’ as ‘the continuation of life or existence.’ Webster’s Ninth New Collegiate Dictionary (1985). Consequently, the ‘ordinary meaning’ of ‘to enhance the propagation or survival’ of the Three Antelope species means to add or contribute to an increase in their numbers or to the continuation of their existence. Thus, in sum, the Service is permitted to allow take, import, export, etc. of the Three Antelope species to add or contribute to an increase in the species’ numbers or to the continuation of their existence.”

As the Service explained, captive breeding of the Three Antelope species is vital to increasing the species’ numbers as well as to the continuation of their existence (the three species ‘are dependent on captive breeding and activities associated with captive breeding for their conservation’); (‘but for captive breeding, the species might be extinct’). All three species’ populations in the wild have been greatly reduced or extirpated. The world’s population of these species is heavily comprised of captive-bred individuals. Captive breeding programs for these species serve to provide insurance against extinction in the wild and will in the future provide breeding stock for reestablishment of natural populations. Captive-breeding is also a significant component of the Action Plan developed by antelope experts of the Sahelo-Saharan Range States and adopted by the Convention on Migratory Species. Captive-breeding facilities in the US currently engage in the propagation of the species.

“Allowing ranches to continue their practice of taking US captive-bred members of the Three Antelope species through sport hunting facilitates captive breeding of the species in numerous ways. First, it provides funds needed to operate and manage herds on ranches. Second, the large amount of land available on ranches provides opportunities for research, breeding and preparation for eventual reintroduction to the wild. Third, ranches maintain a genetic reservoir for future reintroduction in the wild or research. Fourth, ranches serve as a repository for excess males, allowing zoos to use their limited space for more important uses that benefit the species. Fifth, ranches contribute to increasing or sustaining captive numbers. Sixth, ranches may provide an alternative to legal and illegal hunting of wild species in range countries. In sum, based on the plain language of Section 10(a)(1)(A) it is clear Congress intended to permit sport hunting of captive-bred antelope outside of their native ranges as a means to enhance the propagation or survival of the species under this Section of the ESA. Indeed, the Court need inquire no further to hold that the challenged rule passes muster.

“The exemption is also consistent with the design or scheme of the ESA as a whole. Here, although the ESA allows the Service to list foreign species as endangered or threatened anywhere they exist in the world, it also recognizes the sovereignty of foreign nations and the limitations on the jurisdiction of the United States by requiring the designation of critical habitat for domestic species only…

The limited legislative history on Section 10(a)(1)(A) is also consistent with the Service’s decision here. In a report, the House explained that activities to encourage propagation or survival may take place in captivity, in a controlled habitat or even in an uncontrolled habitat so long as this is found to provide the most practicable and realistic opportunity to encourage the development of the species concerned. They might even, in extraordinary circumstances, include the power to cull excess members of a species where the carrying capacity of its environment is in danger of being overwhelmed.

H.R. Report 93-412 at 156. This statement clearly demonstrates Congress’ intention to allow the Service to permit certain otherwise prohibited activities that enhance the propagation or survival of a species with respect to captive-bred animals, such as US captive-bred members of the Three Antelope species. The last sentence provides an example of where Congress deemed it appropriate to permit take of listed species to enhance the propagation or survival of the species, though it does not state that this is the only situation where take may be permitted.”

In short, the arguments and decision established for the first time in any case that it is legal to breed and hunt (cull) captive-bred exotic wildlife species listed as endangered under the ESA. That is a win! These populations exist because revenue and incentives from the hunting “serve as an insurance policy against total extinction.”

Now for the loss. The court concluded “that the text, context, purpose and legislative history of the statute make clear that Congress intended permits for the enhancement of propagation or survival of an endangered species to be issued on a case-by-case basis following an application and public consideration of that application.” This “individualized permitting process” is what the special rule in issue dispenses with.

The court explained that the regulations unlawfully dispensed with information such as a complete description and address of the institutions, “full statement of the reasons why the applicant is justified in obtaining a permit….[W]ithout this information, it is impossible to evaluate whether each permitted act will enhance the propagation or survival of the species.” Under this rule, “the public is shut out.” The court went on to state that “[b]lanket exemptions under regulations are anathema…(to) an individualized analysis.”

The regulation was remanded to the Service for revision. It was not vacated. We have corresponded with the USF&WS, which confirms that “the antelope regulation is still in effect at this time,” but individuals can register for captive breeding and culling permits. The method of issuing such permits for endangered exotics predates this new rule and is the one under which Conservation Forces’ Ranching for Restoration Program operates. We have taken the preliminary steps to begin handling regular permits for these three species, but are waiting for action from the USF&WS that will appeal or revise the regulation. In either case, everyone can proceed as normal for now. A revised regulation may be far less onerous than the captive-bred and cull permit route. It goes without saying that you can’t kill off your stock because the special rule, although not based upon individual permits, does clearly require owners to maintain their stock. An owner can sell them to a responsible purchaser, and record-keeping is required.